Judge Lee S. Arian, Case Number: 22STCV20170, Date: 2024-07-30 Tentative Ruling

Judge: Lee S. Arian, Case: 22STCV20170, Date: 2024-07-30 Tentative Ruling

Case Number: 22STCV20170 Hearing Date: July 30, 2024 Dept: 27

Hon. Lee S. Arian, Dept 27

MOTION TO VACATE AND MOTION FOR SUBSTITUTION

Hearing Date: 7/30/24¿

CASE NO./NAME: 22STCV20170 ROBERT ROBINSON JR. vs SINGH GOR & CHRIS, INC., et al.

Moving Party: Plaintiff Robert Robinson Jr.

Responding Party: Unopposed

Notice: Sufficient¿

Ruling: MOTION TO VACATE IS DENIED; MOTION FOR SUBSTITUTION IS MOOT

Background

On June 21, 2022, Plaintiff Robert Robinson, Jr. filed the instant case. At the time of filing, Plaintiff was represented by Michael Domingo (“Domingo”) of the Law Office of Jacob Eramni. On June 21, 2022, the Court scheduled a Final Status Conference for December 5, 2023, and trial for December 19, 2023. Sometime in November 2022, Domingo ceased employment with the Law Office of Jacob Eramni (“LOJE”). On December 19, 2023, Plaintiff did not appear for trial, and as a result, the case was dismissed.

On June 18, 2024, Plaintiff moved the Court to set aside the default. Plaintiff's new counsel, Lafayette Clarke, contends that Plaintiff failed to attend the trial due to a mishap in LOJE’s email forwarding system, and the inadvertent failure to calendar the trial date.

Legal Standard

“It is … well established that it is the policy of the law to bring about a trial on the merits whenever possible, so that any doubts which may exist should be resolved in favor of the application, to the end of securing to a litigant his day in court and a trial upon the merits.”¿ (Frank E. Beckett Co. v. Bobbitt¿(1960) 180 Cal.App.2d Supp. 921, 928.)

Section 473, subdivision (b) provides for two distinct types of relief—commonly differentiated as “discretionary” and “mandatory”—from certain prior actions or proceedings in the trial court. (Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1124.) “Under the discretionary relief provision, on a showing of ‘mistake, inadvertence, surprise, or excusable neglect,’ the court has discretion to allow relief from a ‘judgment, dismissal, order, or other proceeding taken against’ a party or his or her attorney. Under the mandatory relief provision, on the other hand, upon a showing by attorney declaration of ‘mistake, inadvertence, surprise, or neglect,’ the court shall vacate any ‘resulting default judgment or dismissal entered.’” (Ibid., internal citations and quotation marks omitted, quoting CCP § 473, subd. (b).)

The mandatory portion of section 473 requires the court to, “whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.”¿ (Code Civ. Proc., § 473, subd. (b).)¿ A timely mea culpa declaration by a plaintiff’s attorney establishing that a dismissal was taken against her client as a result of attorney mistake, inadvertence, or neglect deprives the court of the discretion to deny relief.¿ (Tackett v. City of Huntington Beach (1994) 22 Cal.App.4th 60, 65

Discussion

The present motion is timely as the case was dismissed on December 19, 2023, and the present motion was filed on June 18, 2024, within the six-month timeline to seek relief from dismissal.

Plaintiff seeks mandatory relief. Plaintiff alleges that Domingo, the original attorney handling the case, ceased employment with LOJE in November 2022. At the time of Domingo’s departure, LOJE’s Information Technology Department enabled email forwarding and reasonably believed that Domingo’s emails would be forwarded to the new handling attorney at LOJE. However, as a result of LOJE’s mistake, inadvertence, surprise, and/or excusable neglect, emails sent to Domingo’s email address were not being forwarded. Additionally, anyone who sent an email to Domingo’s email address did not receive a bounce-back message due to a software error. As a result, anyone who sent an email to Domingo’s email address would have reasonably believed that the email was received, even though the email address was, in actuality, unmonitored and deactivated upon Domingo’s departure from LOJE in November 2022. From December 2022 to about October 2023, notices sent by the court to Domingo either physically or via his email address went unnoticed as the email address was unmonitored. Consequently, LOJE had no knowledge of the pending hearing dates, as no calendaring of the dates was done. (Clarke Decl. ¶ 10, 11.)

The Court is not persuaded that an email forwarding error led to Plaintiff's nonappearance at the trial in December 2023. First, the trial date was set on June 21, 2022, when Domingo was still employed by the law firm. It is not the case that Plaintiff's counsel was only notified of the trial date via email after Domingo's departure from the firm. In fact, there were no filings by Plaintiff and no activity from the Court between June 2022 and December 2023. Additionally, most Court notices are issued by mail. The Court is uncertain how the email forwarding issue could have affected the delivery of physical mail. Based on these reasons, the Court is not convinced that the email forwarding error was the cause for Plaintiff's nonappearance at trial.

What appears more plausible is Plaintiff’s assertion that the case was dismissed due to Plaintiff’s counsel’s inadvertence to calendar the trial date as LOJE’s litigation calendar reveals that none of the hearing dates mentioned were calendared and no record of them was found in the system. (Clarke Decl. ¶ 12, 13.) However, a significant issue with this argument is that Domingo did not submit an affidavit attesting to his mistake in not calendaring the trial date. The only affidavit submitted was by Lafayette Clarke (“Clarke”), and it is unclear from the declaration to what extent Clarke is involved in the present case. Importantly, Clarke does not declare that he or she was responsible for failing to calendar the trial date. There is no declaration from any individual attesting to his or her mistake or inadvertence in failing to properly calendar the trial date, which led to the dismissal of the case.

In essence, the motion fails because there is no declaration from any attorney or individual attesting to his/her fault that led to the dismissal. Additionally, the Court does not find the email forwarding error to be the reason for Plaintiff's nonattendance at trial.

Motion for Substitution

Because the motion to vacate is denied and the case remains dismissed, Plaintiff’s motion for substitution under § 377.11 is moot and therefore also denied.

PLEASE TAKE NOTICE:

If a party intends to submit on this tentative ruling, the party must send an email to the court at sscdept27@lacourt.org with the Subject line “SUBMIT” followed by the case number. The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.

Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument. You should assume that others may appear at the hearing to argue.

If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court. After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave.